Wednesday, December 12, 2018

Indicting a sitting president - 'an unsettled question of law'

Lazy media villagers and cable news jockeys — lookin’ at you Chuck Todd –rotely recite that the Office of Legal Counsel has legal memorandums which say that a sitting president cannot be indicted, “so whatcha gonna do” about Donald Trump?

This is an unsettled question of law. If you actually read the lengthy OLC memos in full, you will find that the OLC first found that a sitting president can be indicted irrespective of any impeachment proceeding by law, but then made a policy argument against the Department of Justice from doing so.

In contrast, independent counsels Leon Jaworski and Kenneth Star both prepared legal memorandums which found that a grand jury could indict a sitting president, and Ken Starr even had an indictment prepared, which he decided not to pursue (see below the fold).

With Republicans in Congress aiding and abetting obstruction of justice by Donald Trump and expressing their willingness to abdicate their constitutionally prescribed duty to permit Trump’s ongoing criminal misconduct to continue unimpaired by Congress, GOP shrugs at Trump’s involvement in Cohen crimes, and ‘I Don’t Care’: GOP Senators Dismiss Allegations Against Trump, effectively rendering the impeachment clause remedy a nullity (i.e., jury nullification), the indictment of Donald Trump by Robert Mueller for his criminal misconduct may be necessary in order to obtain justice.

Harvard law professor Laurence Tribe was a guest on The Last Word with Lawrence O’Donnell to explain that there is nothing in the Constitution that prevents the indictment of a sitting president. …

Snip - lots of legal argument here.

As I said above, if you actually read the lengthy OLC memos in full, you will find that the OLC first found that a sitting president can be indicted irrespective of any impeachment proceeding by law, but then made a policy argument against the Department of Justice from doing so.

It would appear to be a policy argument that was influenced and motivated by a desire to protect the president whom they served.

The rule of law, however, supports the indictment of a president for criminal misconduct. Professor Tribe makes the point using Donald Trump’s braggadocio claim about shooting someone on Fifth Avenue.